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  News & Views Monday 27th March to Sunday 2nd April 2017  
"Not in Accordance With the Law" Ground of Appeal

(Even in the absence of a "not in accordance with the law" ground of appeal, the Tribunal ought to take the Secretary of State's guidance into account if it points clearly to a particular outcome in the instant case. Only in that way can consistency be obtained between those cases that do, and those cases that do not, come before the Tribunal.)

SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC) (16 February 2017)

Determination and Reasons

1.             There are three appellants: all are nationals of Albania, a mother and her two young children. Each of them entered the United Kingdom unlawfully some time, apparently, in 2012. Previous to that, they had lived in Albania. The first appellant's husband came to this country much earlier. He obtained indefinite leave to remain and subsequently, by false representations as to his nationality or identity or both, obtained a grant of British citizenship. He is currently serving a sentence of seven and a half years imprisonment for offences connected with people-trafficking.

2.             After the appellants arrived in the United Kingdom, the first appellant gave birth to a further child; that child was born when the child's father had indefinite leave to remain (whatever may be said about his citizenship) and as a result the youngest child is a British citizen. The appellants were, on 29 April 2015, served with notices refusing asylum claims and deciding that they should be removed from the United Kingdom as illegal entrants, which it is accepted they are.

3.             A number of claims were raised in response to that decision. The asylum claim is no longer pursued, and was not pursued before the First-tier Tribunal. A claim based on Article 3 of the European Convention on Human Rights was also not pursued before the First-tier Tribunal. The First-tier Tribunal was invited to consider a claim based on the Immigration European Economic Area Regulations 2006 (as amended) on the basis that the first appellant was the primary carer of an EU citizen child. That claim was dealt with by the First-tier Tribunal and rejected as a matter of jurisdiction. That matter is again no longer pursued. What is pursued is an argument that because of the nationality of the youngest child, it would be unreasonable to expect that child to leave the United Kingdom; and that that has an impact on the merits of the decision that the appellants should be removed. In so far as that matter is concerned, before the First-tier Tribunal there was some difficulty in ascertaining precisely whether the youngest child is indeed a British citizen. The Presenting Officer evidently took the position that because of the unedifying immigration history of the father there was some doubt about the citizenship of the child. That doubt was endorsed by the First-tier Tribunal Judge who decided that the child was, if we put it in this way, not entitled to be regarded as a British citizen for the purposes of the appeal. That, it is accepted, was wrong. The youngest child is a British citizen. The Secretary of State has formally accepted that matter in the Rule 24 notice and indeed rightly so.

12.         On occasion, perhaps where it has more information than the Secretary of State had or might have had, or perhaps if a case is exceptional, the Tribunal may find a reason for departing from such guidance. But where there is clear guidance which covers a case where an assessment has to be made, and where the guidance clearly demonstrates what the outcome of the assessment would have been made by the Secretary of State, it would, we think, be the normal practice for the Tribunal to take such guidance into account and to apply it in assessing the same consideration in a case that came before it.
13.         In our judgement, therefore, the way forward in this case is to conclude that, not for the reasons argued by Mr Eaton, but for those, as it happens, argued by Mr Wilding, this is a case where it would be unreasonable to expect the youngest child to leave the United Kingdom. We will therefore set aside the decision of the First-tier Tribunal and substitute a decision allowing the appeals of all three appellants on that ground. The period of leave is a matter to be determined by the Secretary of State.

Published on Bailii, 23/03/2017

SSHD Asked to Consider Compassion Before Resorting to Law

IKM, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 3031 (Admin) (07 October 2015)

1. Mr Justice Collins: The claimant, who will be referred to as "IKM", is a native of Sudan, a non-Arab from Darfur. She worked in Khartoum as an accountant, but in 2004 the Janjaweed were responsible for killing her father and for kidnapping her mother, and thus she had to look after the family that was left in Darfur. So she returned to her village together with her fiancé. Unfortunately the Janjaweed attacked and killed her fiancé and shot her in the leg and also raped her. She managed to escape and went to another village, but in 2006 she was arrested by state agents and accused of support for Darfur rebels. She was very badly treated. She was stabbed with a knife, beaten and raped and held for three days. She was then told that she would be further detained when information was obtained. Again she was detained in 2007; again she was raped and beaten and interrogated at knifepoint.

2. As a result of this, she decided that she had to leave Sudan and did so in 2008. She had managed to obtain a visa to come to this country as a student. Unfortunately she found that she was not able to study because of the recurrent flashbacks so far as her treatment in Sudan was concerned. Subsequent diagnosis by no less than I think four or five different doctors confirms that she suffers from PTSD, and thus these flashbacks are not in the least surprising.

3. In any event, she decided that she should claim asylum. She says that she thought that she would not be able to claim it in this country because she had the student visa, and so she decided to go to the Republic of Ireland and she claimed asylum there. Unfortunately, her claim was refused. She appealed, but her appeal was dismissed in 2010. The result was that she was liable for deportation, and indeed I gather that a deportation order was made against her, albeit it was not implemented.

4.The Secretary of State has said in the decision letter under attack that she is aware that Ireland does not at the moment returned forcibly to Sudan; it is only if there is a voluntary return that the deportation order can be put into effect. Whether that will remain the position and what the precise circumstances are I have no evidence about.

5.However, as a result of that refusal, she decided that she would leave Ireland and cross the border into Northern Ireland and to Belfast. In August 2013 she was arrested and she was detained for some five days. It is clear that the circumstances of her detention were, to say the least, unfortunate, because she was handcuffed and kept I think in a police station for at least two days. This had a very serious effect on her health, again because of bringing back what she had suffered in Sudan. Nonetheless, she was then released and she came to the mainland.

6. She complied entirely with the requirements of reporting and she began to establish a life here, living in the north-east of the country. As a result of that, there is no question but that her health improved. It was always fragile, for obvious reasons, but, as a result of support and, as a result of no concern that she would be returned to Sudan from this country, her health improved.

7. However, the Secretary of State decided that she should be returned to the Republic of Ireland in accordance with the Dublin Convention. That provides, so far as material (and I need not go into the details), that the country in which the first application for asylum is made is the country which will determine all asylum matters in the future. So it was that the United Kingdom requested under the Dublin agreement that she should be taken back into the Republic of Ireland. The Republic of Ireland agreed to that.

8. She knew that she had had her claim rejected in Ireland, and so she reasonably believed that if she were returned to Ireland the inevitable result would be that she would be sent back to Sudan. It may be that she would have a right to make a fresh claim. I say "may be", because that is what the Secretary of State has asserted in the decision under attack. I have no evidence that that is indeed the position, but what is said is that in the Republic of Ireland questions of subsidiary protection (or humanitarian protection as it is termed in this country) are dealt with separately from the asylum claim, and so it may be (again, we do not know the full details, because unfortunately neither side has produced the Irish appeal decision - which presumably is a matter of public record - or the refusal letter upon which the appeal was based) that there is now a right to claim humanitarian protection. However, I am told that the decision of the Irish, both the ministry and on appeal, depended upon to an extent credibility issues but concluded that internal relocation to Khartoum would provide the necessary protection.

9. It is important to note - and this, as I understand it, is not controversial - that in this country internal relocation is not accepted as safe for such as the claimant, namely a non-Arab from Darfur. That being so, and if, as I am told, the Irish decision was based at least in part upon internal relocation, then it is difficult to see that humanitarian protection could result in a different decision, because the alleged safety of internal relocation applies equally to humanitarian protection as it does to asylum. Thus the chances of any success in the Republic of Ireland are not likely to be great; indeed, they are likely to be non-existent if that is correct.

10. It now is the case that there is strong medical evidence that shows that the claimant's account is credible. There is a lengthy report from a psychiatrist instructed on behalf of the claimant, in which details are given of her account. In addition, the doctor has considered the injuries that she shows which are entirely consistent with the account of the ill-treatment and indeed torture that she has described. In those circumstances, and undoubtedly correctly, the Secretary of State has accepted that her account may indeed be credible. In the circumstances, it is difficult to see that she has other than a very strong case for asylum in this country, because in this country, having regard in particular to a country guidance case in the Upper Tribunal, it is not accepted that internal relocation would provide the necessary protection for someone such as the claimant. Nevertheless, the Secretary of State has taken the view that it is not for this country to determine her asylum claim but that she should be returned to the Republic of Ireland.

11. The second aspect which is of considerable importance is the claimant's state of health. As I have said, she suffers from PTSD and there is no question but that she is very fragile. For reasons best known to those responsible she was taken into custody at the beginning of December 2013 with a view to her removal taking place at the beginning of January. It was well known that she was someone who, in all probability, had sustained torture. That meant that she was someone who should not be detained unless there were very exceptional circumstances. Mr Mitchell has accepted that the detention was unlawful, and how anyone could possibly reasonably have believed that there were very exceptional circumstances in this case is beyond belief, particularly as there was no question of immediate removal because the custody was a month before the proposed removal.

12. Furthermore, on the first day that she was in custody at the relevant institution, it was said in terms that to keep her in custody would damage her health, yet those responsible still took the view that detention should continue. Indeed it did damage her health, to such an extent that when she was eventually released from custody at the beginning of January she had to spend three weeks in hospital. It is, I hope, a unique case, because the behaviour of those responsible was utterly unreasonable and truly, in my judgment, disgraceful. She should never have been put in custody in the way that she was; there was no possible case that there were very exceptional circumstances; and, as I say, the damaging effect on her health was warned about and indeed occurred. However, I do not need to go further into the question of detention, which is part of the challenge in this case, because, as I say, very properly Mr Mitchell on behalf of the Secretary of State has conceded that the detention was unlawful and I will deal with the necessary order in relation to the damages claim in due course.

13. I come back to the decision under attack. This case has taken a very long time to come before the court. It was instituted in January 2014, but there have been a number of interlocutory applications and various orders by a succession of deputy judges. The result is, as I say, perhaps unfortunately that it has only come before me today. However, there were attempts by the claimant's solicitors to persuade the Secretary of State to change her mind. So the final refusal is the one that matters, and that was a refusal on 3 October 2014. It resulted from additional representations which had been made in August following the medical report from Dr Millington.

14. That decision letter made a number of points. It recognised that the claimant was suffering from a number of health issues; it made the point that there would be availability of proper care in the Republic of Ireland. That is not challenged, nor, Mr Halim submits, is it really in issue because it misses the point; the point is the damaging effect on the claimant were she to be removed because of her reasonable view that the result would be that her claim to be able to remain was rejected and so she would be subject of a deportation order to Sudan. As I say, there is no possible doubt that that concern was one reasonably held, whether or not there are at present forced returns from the Republic of Ireland to Sudan. As occurred in detention, notwithstanding that there were available proper measures to deal with illnesses, whether mental or physical, she still suffered damage to her health. This showed that whatever arrangements there were available in the Republic of Ireland would not be likely to alleviate the health problems that she was likely to suffer. Furthermore, if she was aware that she was to be removed to Ireland, because of her fears of what would happen there, it was said that there was a real risk that she would become suicidal. Certainly, it would have a serious and damaging effect upon her health. As I say, the fact that there are proper arrangements in the Republic of Ireland (and I do not doubt that there are) in the circumstances of this case fail to meet the point which is relied on on the claimant's behalf.

15. The other aspect is the question of fear of onward refoulement. That is dealt with in the decision letter by making the point, as I have said, first of all that she will be able to have a fresh claim because of the humanitarian or subsidiary protection aspect, and that there are at the moment no forcible returns to Sudan from the Republic of Ireland. That again fails to meet the point, because she will not get any of the advantages that flow from being recognised as a refugee, and there is always hanging over her the risk that circumstances may change and that there may well be a question of return to Sudan. At the very least it seems to me that it is arguable that there is a real risk (and that is the appropriate test) of refoulement which has to be taken into account by the Secretary of State and which has not been taken into account in all the circumstances.

16. The decision under attack lies in the certification of the claim. According to paragraph 5(4) of schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 that was put on the basis her human rights claims is clearly unfounded. The human rights claim depends upon the serious damage to her health, possible suicide implications of the decision to return her, but also goes beyond human rights because of the real risk of refoulement, and that has not been properly taken into account.

17. It seems to me that it is quite impossible for the Secretary of State in this case to say that there is no reasonable possibility that an appeal in this country would come down in the claimant's favour. The test for the purpose of certification is a very stringent one, and in my judgment, for the reasons I have indicated, is clearly not met in the circumstances of this case. It follows that this decision must be quashed.

18. I reiterate that on the facts of this case, albeit Mr Mitchell has referred to "asylum shopping", he has recognised that this may not be a case that could properly be regarded as asylum shopping, because this claimant on the face of it may well have a genuine claim to asylum so far as this country's law is concerned, whatever may be the position in the Republic of Ireland. She has begun to make a life for herself in this country. Her health has improved and is likely to improve more if she knows that she has a safe haven and there is no chance of her being sent back to Sudan unless circumstances in Sudan change dramatically, and there is no indication, I fear, at the moment that that is the case.

19. It seems to me that this is a case where the Secretary of State should seriously consider whether it really is humanitarian to require that the Dublin Convention provisions be followed to the letter, rather than adopting a compassionate approach in the particular circumstances of this case. However, of course, it is not my decision but the Secretary of State's in due course (or rather, I suppose, some employee of the Home Office who will have the matter delegated). But this is a sensitive case, a difficult case, and one where, as I say, perhaps somewhat unusually it seems to me all the merits are on the side of the claimant.

Published on Bailii, 14/03/2017